| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RE: BOAG [2011] WADC 179 CORAM : MACKNAY AUDCJ HEARD : 13 JUNE, 21 & 26 OCTOBER 2011 DELIVERED : 26 OCTOBER 2011 FILE NO/S : APP 90 of 2010 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
IN THE MATTER of an appeal by
BETWEEN : GAYLE MAREE BOAG
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : R GUTHRIE Citation : [2010] WACIC 39 Catchwords: Criminal injuries compensation - Appeal - Turns on own facts Legislation: Criminal Injuries Compensation Act 2003, s 56(1)
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Result: Appeal allowed Representation: Counsel:
Appellant : Mr T J Hammond
Amicus Curiae : Ms K L Hope
Solicitors:
Appellant : Shine Lawyers
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
RJE v Bandy (Unreported, WASC, Library No. 1365, 31 May 1974)
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Introduction 1 This is an appeal from a decision of an Assessor of Criminal Injuries Compensation made on 9 November 2010, pursuant to which the appellant was awarded compensation as follows: 2 Written reasons for the decision were sought and duly delivered on 1 December 2010. 3 Those are, with respect, both detailed and clear and it is convenient for present purposes to set out the same as to the circumstances of the offence and injuries giving rise to the appellant's claim: Gayle Maree Boag was born on 7 March 1959 and at all material times was employed as a casual nurse and a mine site truck driver on a fly-in/fly-out basis in the North-West mining region of Western Australia. On 26 August 2007 she was assaulted by Adele Susan Davey ('the offender'). The circumstances to which the offender pleaded guilty to a charge of assault occasioning bodily harm in the Magistrates Court at Derby on 6 February 2008 were as follows. At 6.30 am on Sunday the 26 August 2007 the applicant was asleep in bed with the offender's father Tom Davey, at Mr Davey's house in Derby. The applicant was woken by the sound of the bedroom door opening and observed the offender enter the room. She did not know the offender to be the daughter of Mr Davey at that time. The offender approached the applicant and punched that applicant three times in the face and then grasped a handful of the applicant's hair and dragged the applicant, by her hair, out of bed across the bedroom. The offender continued to punch and kick the applicant in the head whilst dragging the applicant across the floor. The offender screamed at the applicant demanding that she leave her father's premises. The applicant, who was wearing only her underpants, managed to get dressed and hurried from the house. It is disputed by the offender that she was, at this point, restrained by her father from further assaulting the applicant, although she accepts that her father intervened to prevent further assault [1]. (Page 4)
The applicant drove from Derby to Broome to her home and showered as she was covered in dry blood, had a large lump and a graze on the back of her head. She noticed that she had suffered some hair loss and that her nose continued to bleed and that her left eye was severely bloodshot. She had scratches over her face and there was swelling to her nose and left cheek and eye socket. She also had scratches to her stomach, back, left elbow and legs from being dragged across the floor. Having showered, the applicant drove herself to the Broome Hospital Accident and Emergency and was treated by Dr Phillips. For the purpose of the prosecution of the offender Dr Phillips provided a report to police dated 24 January 2008 wherein she described the applicant's injuries as: 1. A haematoma of the occiput. 2. Swelling and bruising of the left eye with no obvious eyeball injury and no visual disturbance. 3. Swelling and bruising of the nasal bridge [2]. Dr Phillips diagnosed soft tissue injuries and recommended analgesia. She referred the applicant for a CT scan which was performed the following day, and which revealed a fracture of the floor of the left orbit with deficiency of the orbital floor and multiple foci of gas in the subcutaneous tissues. The applicant returned to the Broome Hospital Accident and Emergency on 3, 4 and 6 September 2007 whereupon she was advised that no surgical intervention would be required for her injuries and that she would be cleared for work on light duties. She was advised against driving heavy vehicles for a period of two weeks. Dr Phillips noted that the applicant was referred to a visiting ophthalmology team in Broome for review in October 2007 but did not attend that appointment. She underwent a further CT scan in November 2007 which revealed that the left orbit fracture was healing and that there was minimal sinusitis. Dr Phillips concluded that, as at January 2008, the applicant had recovered from her injuries [3]. The applicant was referred by her solicitors to Professor William Coman who examined the applicant on 1 June 2009 and in a report dated 17 June 2009 observed that the applicant was complaining that the left side of her nose was blocked and that she had difficulty breathing through the nose and a tendency to snore at night. Professor Coman noted that the applicant was, at the time, employed as an underground truck driver in a mine. Following his examination Professor Coman concluded that the applicant had suffered from a fracture of the left orbit with no entrapment of the orbit. He observed that CT scans showed that her sinuses were clear. He did not consider that the applicant's ability to work at that time or in the future would be affected by the injuries that she had described to him. He considered that the applicant's nasal airway was satisfactory but that if there was any deterioration she might require a nasal septoplasty and surgical reduction of the inferior turbinates [4]. (Page 5)
4 In addition to the material referred to the Assessor had before him two reports of psychologists. 5 The first was that of a psychologist based in Redcliffe, Queensland, Ms Carol Park, dated 13 October 2009. 6 The second, dated 31 March 2010, was from a registered psychologist in Perth, Ms Mya Manning. 7 On the first hearing of the appeal, additional material was put forward, that being a further statement of the appellant, and another report from Ms Manning, dated 29 March 2011, albeit one based on prior material, as according to the author, the appellant 'had not made herself available for a recent interview … '. 8 The appellant also went into the witness-box and gave evidence on her own behalf on the first hearing of the appeal.
Appellate framework 9 Although described as an appeal the hearing is one de novo and the court must decide the application afresh, without being fettered by the Assessor's decision, and may receive further evidence and information: Criminal Injuries Compensation Act 2003 (WA) (the Act) s 56(1). 10 The ordinary principles for assessment of damages in tort apply, subject to any constraint imposed by the Act, and to the limit placed on an award of compensation: RJE v Bandy (Unreported, WASC, Library No. 1365, 31 May 1974) 3 (Burt J). 11 It is not necessary for an offence to be the sole cause of injury: see Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666.
Evidence 12 In her further statement the appellant said that following the offence it took up to a month for the bruising and swelling to subside. 13 The appellant said she transferred her employment as she felt difficulty in being around Tom Davey, the father of her assailant. 14 Over the next year the appellant said she tried to get on with her life but was without family support, and the way she felt continued to worsen until eventually 'it all came to a head'. (Page 6)
15 In late 2008 the appellant said she was not able to cope with the psychological effects of the offence so saw Dr Graeme Balin of the Scarborough Medical Centre in Queensland and discussed the assault with him. 16 Dr Balin undertook a mental health plan, prescribed Lexapro and Temazapam, and referred her to a psychologist, Ms Carol Park, the appellant said. 17 The amount of Lexapro she took had varied from time to time since Dr Balin prescribed it, the appellant said, and was presently at the original level, but she did not feel able to cease taking it. 18 The appellant said she saw Ms Park on three occasions between May and July 2009, and told her at the first consultation that 'I've been involved in an assault incident and I had not been coping since and that I was taking medication'. 19 Ms Park advised that she needed a complete life history and spent the three sessions discussing past events from her life, the appellant said. 20 Those included, she said, a violent and abusive relationship which ended in 1990, and which resulted in the appellant seeing a psychiatrist, a marriage which lasted for six years, a 'small breakdown' following the marriage, after which she was prescribed Arapax and then Lexapro, a falling out with her younger sister, a temporary break in contact with her mother, and the loss of her father about 12 months previous. 21 The appellant said that in mid-2009 her work commitments changed and she was required to return to Western Australia for work, so she could not continue with Ms Park and '[u]nfortunately our sessions had not progressed to the point of reaching the significant event being the assault on 26 August 2007'. 22 Prior to the offence the appellant said she had ceased Lexapro, was enjoying her work, and was happy with all aspects of her life. 23 After the offence she experienced a great difficulty with relationships, she said, and terminated her only relationship with a male after she feared for her safety on meeting his former partner, although that person had not been aggressive in any way. (Page 7)
24 The appellant said that since the offence she almost never went out socially, and lived a 'reclusive life', whilst her use of alcohol had increased. 25 The appellant said she was now a different person, and did not know what her future held. 26 In her oral evidence the appellant said that she injured her knee when she stepped over a small fence during a game of cricket, and was referred by Dr Balin to an orthopaedic surgeon at Coffs Harbour, had an arthroscopy done, and went straight back to work. 27 'So the knee was just nothing, as such. It was just one of those small things that happen' the appellant said, and she did not understand how that got mixed up with Ms Park, as the injury had not affected her psychological state. 28 On further questioning the appellant acknowledged that she had experienced pain at work from her knee and had been to the hospital and obtained medication for the pain and to help her sleep.
Psychological reports 29 Ms Carol Park's report of 13 October 2009 was sent to the appellant's solicitors, and described the appellant's presenting complaints as: Anxiety and depression associated with physical pain from knee injury, difficulty sleeping, and concerns regarding future employment prospects. History of depression and low self-esteem exacerbated by previous domestic violence. 30 The appellant was struggling with sleep patterns 'which were disturbed by pain to her knee', together with the shift work in Mt Isa she was then doing, Ms Park stated and, '[t]here was a sense of the appellant having become quite isolated in dealing with pain and the attendant depression and anxiety …', she said. 31 Ms Park said she considered the appellant had a mixed anxiety-depressive disorder, and required a course of treatment by way of counselling. 32 Finally, Ms Park said that it was 'important to note that neither [the appellant] nor her referring Doctor commented upon an injury on 28 August 2007' [sic]. (Page 8)
33 Ms Park went on to say, in relation to the need for future treatment, in respect of such an injury, that she was not qualified to express an opinion 'given that [the appellant's] presentation did not include mention of such'. 34 Ms Maya Manning said she saw the appellant on 20 March 2010 and in her report of 31 March 2010 she expressed the view that the appellant had sustained 'a number of physiological cognitive and emotional injuries around the times immediately post-trauma, which may be psychologically related'. 35 The cognitive injuries included suicidal ideation, a pessimistic view of the future, re-experiencing the trauma, recurring thoughts, hyper-vigilance and a mistrust of people, she said, whilst the emotional injuries were anxiety and nervousness, fear, a depressed or lowered mood, sadness, feelings of isolation, worrying about others, self-blame and a diminished sense of personal safety. 36 Ms Manning said the behavioural injuries included self-harm, which involved the appellant starving herself at times and superficial cuts to the wrist, increased alcohol consumption and avoidance of previously pursued activities. 37 The appellant reported that her alcohol consumption had increased dramatically in the last two years and certainly in the post-trauma period. 38 Ms Manning said that one function of regular and excessive alcohol consumption was as a coping strategy to tolerate distressing symptoms. 39 The appellant's scores for stress and anxiety were normal and her depression only mild according to a scale administered to her, but despite that Ms Manning said she thought the appellant had 'under reported her symptoms'. 40 The symptoms displayed and/or reported by the appellant met the criteria for 'Reaction to Severe Stress, unspecified' and 'Recurrent Depressive Disorder, current episode moderate' Ms Manning said, and the appellant also suffered from 'mental and nervous shock'. 41 There were other events in the appellant's life which may have predisposed her to future psychological problems, Ms Manning said, but in her opinion the assault was the 'primary and overriding causal factor …'. (Page 9)
42 The appellant had reported a diagnosis of depression 'in the 1980s', Ms Manning said, but it was 'reasonable to assume' the assault could exacerbate such. 43 Ms Manning said the appellant's ability to work had been affected by the assault, although she had been employed since it in her prior occupation of mine site truck driver, until she was made redundant in July 2009. 44 Ms Manning said she thought the appellant ought undertake weekly intervention sessions with a 'trauma specialist' for about 12 weeks, and although it was 'likely that the frequency and intensity of the post-trauma symptoms have peaked' they were unlikely to permanently resolve without that assistance. 45 Ms Manning's second report was provided in response to questions in a communication from the appellant's solicitors, but that does not form part of the materials before me. 46 In that report Ms Manning confirmed her earlier stated views as to the nature and provenance of the appellant's psychological difficulties, adding that the appellant's diagnoses were primarily but not exclusively related to the trauma of the assault, and that she may have met the criteria for other diagnoses, which at the time were considered to beyond the scope of the referral questions.
Other evidence 47 The assessor's file, and the information contained therein, is also before me. 48 That includes a statement of the appellant dated 27 July 2010 in which she complains of breathing difficulties since the offence, attributed by her to changes in the sinuses.
Appeal 49 The assault on the appellant by the daughter of her male friend was, I would find, a traumatic one, given its circumstances, in particular the appellant being in a bed when she was suddenly and violently attacked. 50 The appellant sustained extensive soft tissue injuries and a fracture of the left eye orbit as a result and complains of some ongoing nasal symptoms. (Page 10)
51 She also complains of substantial and ongoing psychological injury. 52 That the assault could result in some psychological sequelae is something about which I have no difficulty. 53 Further, the appellant was vulnerable in that regard, given her history. 54 There is however an issue as to whether any ongoing psychological difficulties experienced by the appellant were due, in whole or in part, to the assault, or whether such were either solely related to other, pre-existing difficulties, or had been brought on by subsequent events. 55 That issue arises from the report of Ms Park, which plainly does not assist the appellant in relation to there having been continuing symptoms from the time of the assault, and which were related to it. 56 The assessor, in his reasons, having made reference to Ms Park's report said that he was unable to conclude that the [appellant's] ongoing stress reaction and/or anxiety/depressive symptoms should be attributed to the assault on 26 August 2007. 57 An appeal in relation to criminal injuries compensation does not take the form of a trial. 58 Rarely does any party appear in opposition. 59 Counsel for the chief executive officer of the Department of the Attorney General appears only as amicus curiae and ordinarily, as here, does not formally cross-examine the appellant. 60 It is open to a judge to ask some questions of an appellant, as I did, but it is both undesirable and inappropriate for a judge to embark on anything remotely resembling a formal cross-examination. 61 As a result, where as here, an appellant gives sworn evidence, that evidence is not tested in the usual way. 62 Similarly, those who provide expert reports are not ordinarily subjected to scrutiny beyond an examination of a report in the light of the other materials put forward. 63 Where credibility is in issue, there are therefore difficulties. (Page 11)
Conclusions 64 Although the appellant and her solicitors were clearly on notice, following the assessor's determination, that the apparent contradiction between what the appellant and Ms Park said as to the former's complaints in mid-2009 was a matter of some significance, no apparent attempt was made prior to the first hearing of the appeal to obtain any information from Dr Balin as to the appellant's complaints to him, and as to his reasons for referring her to Ms Park. 65 Notwithstanding the failure to seek information from Dr Balin, following the first hearing, and after due consideration of the matter, I decided to give the appellant a further opportunity to obtain information: … as to the stated basis for [the appellant's] attendance on that doctor prior to her referral to the psychologist Ms Park, particulars of the reasons for the referral, and particulars as to the cause and nature of her knee injury, together with any other information the doctor considers relevant. 66 The appellant then submitted a report dated 26 September 2011 from Dr Graham Balin of the Scarborough Village Surgery which relevantly reads: In response to your questions: 1. Gayle presented on 12.1.09 with recurrent depression. She related this to having been involved in a violent abusive relationship. She had been on Lexapro, an antidepressant, previously, but had been able to stop it over one year prior. I recommenced Lexapro 20 mg daily. I subsequently saw her on 5.3.09, when she reported feeling 'spun out' on the 20 mg, so had cut it in half to 10 mg and had felt better on that. She described feelings of suspiciousness in her relationship with her current boyfriend, and had accused him of infidelity. I felt that further exploration of these issues would be beneficial, and suggested that a psychologist might be helpful to her, even though she had not been keen on the idea in January. 2 She attended again on 30.3.09 when I performed the K10 questionnaire, a measure of psychological status. She returned a score of 27 out of 50, consistent with a moderate degree of anxiety ± depression. She also reported suicidal thoughts and ideas but denied having made any concrete plans to self-harm. I advised her of Lifeline, and the 24 hour Community Mental Health hotline for 'emergency' use. She told me that she had used Lifeline once before. I referred her to Carol Park, a Clinical Psychologist, to help (Page 12)
come to terms with her past, and learn techniques to cope with suspicion and anxiety for the future. 3. On 29.6.09 I reviewed her progress with Carol Park [some improvement, 23/50 on K10 questionnaire] and she told me then that she had sustained some damage to her left knee seven weeks previously in Mount Isa. She had been seen in the hospital there. It was still painful and requested a referral to a Dr Chan which I provided. I also requested an X-ray of her knee. 4. The only other information I should add relates to the above. She has not returned since 29.6.09, despite a letter requesting her attendance to follow-up the X-ray result. I received a telephone call from Dr Chan saying that she had not attended his appointment and requesting I send him a copy of my referral letter. I have not heard from either of them since, nor have I received any communication from Carol Park. 67 There is really nothing in that report which assists the proposition put forward by the appellant that at the end of 2008 she was unable to cope with the psychologist effects of the assault so saw Dr Balin and discussed it with him, following which he undertook a mental health plan, which included the referral to Ms Park, for the purpose of treating the sequelae of the assault. 68 Doing the best I can I would find that the appellant, a clearly vulnerable individual subjected to a sudden, traumatic and humiliating assault, did suffer a psychologist sequelae, and that would have been with her for some time, as an exacerbation of her underlying psychological difficulties. 69 In 2009 however, although the appellant then had some difficulties, such cannot be attributed to the assault, given Dr Balin's report, the absence of any complaint made by her to Ms Park, and Ms Park's attribution of those difficulties to other causes put forward by the appellant. 70 It is implicit in that finding of course that I do not rely on the appellant's evidence as to her position at that time, nor on what she said she told Dr Balin and Ms Park. 71 In that regard Dr Balin set out quite a detailed history without reference to the assault, whilst there was an extensive course of consultation between Ms Park and the appellant and I cannot accept that it is at all likely that the former would fail to pick up what, on the appellant's (Page 13)
account, was her dominant psychological difficulty and the cause of her referral by the appellant's general practitioner. 72 Further, I considered the appellant's evidence in relation to her claim for loss of earnings, dealt with below, showed in some respects a lack of apparent regard for accuracy. 73 And, as stated, the absence of any supporting evidence, or some explanation for its absence, does not assist the appellant in the circumstances of the present appeal. 74 Given that finding, it follows that there were other unrelated reasons for the appellant's psychological distress in 2009, and that the true state of affairs was not therefore known to Ms Maya Manning when she formed her opinion as to the causes of the appellant's condition in March 2010. 75 I would not therefore rely on that evidence, nor that in her subsequent report, and would not find that the appellant has established any entitlement to compensation for an injury constituted by mental shock or psychological sequelae beyond sometime prior to early 2009. 76 The appellant also sustained significant physical injuries, including a fracture of the left eye orbit, the symptoms in relation to which have not entirely resolved, so that a future need for surgery could not be completely excluded. 77 In all the circumstances I consider the appellant is entitled to compensation for her injuries of $14,000.
Loss of earnings 78 In relation to her claim for loss of income the appellant said that at the time of the assault, on 26 August 2007, she worked on a mine for two weeks and was then rostered off for two weeks, and on some days during the second week of that time off she would pick up casual work as an endorsed state enrolled nurse at the Broome Hospital. 79 She first said that on average she would work nearly a full week at a rate of $23 - $24 per hour, over a 10 hour shift, together with penalty rates, and had done so for quite a few months. 80 The amount earned did depend on both penalty rates and shifts worked, the appellant said, and she said she worked '10 hour night shifts most of the time', that becoming 'probably' four such shifts over the week, (Page 14)
then 'anywhere from four to seven shifts', and finally 'four, maybe five, probably'. 81 The appellant said that on 26 August 2007 she had 'already been booked for six or seven shifts or night shifts' which she did not attend, and she only returned to work at the hospital after quite some time, probably in the following year, and then only for a short time. 82 Her appearance due to her facial injuries was the cause of her initial non-attendance, the appellant said, then after that was because she had lost some faith in the hospital system due to what she perceived to be her poor treatment whilst a patient. 83 As counsel for the chief executive officer pointed out a letter from the Department of Health, dated 30 April 2009, stated that the appellant last worked on 6 June 2007 or two months and three weeks prior to the assault. 84 In response the appellant said that sometimes she visited friends during her time off from the mine, so that she did not always work, and she also had to sign contracts in relation to the hospital work 'all the time, so that may have been the end of one contract'. 85 She did not however believe 6 June 2007 would have been the last time she worked there prior to the assault, the appellant said. 86 There are a number of salary advice forms in the assessor's file, and those may provide some support for the appellant's assertion that she did work after the date set out in the Department's letter. 87 The relevant information in those forms can usefully be set out in tabular form.
| Payroll date | Hours | Gross pay | Net pay | | 10 June 2007 | 46 hours | $1,000.49 | $734.49 | | 24 June 2007 | 20 hours | $ 303.67 | $253.67 | | 8 July 2007 | 13 hours | $ 74.72 | $ 62.72 | | 5 August 2007 | 0 hours | $ 15.28 | $ 13.28 | | 2 September 2007 | 0 hours | $ 15.28 | $ 13.28 | (Page 15)
88 The dates between which the work was done do not appear. 89 The copy PAYG payment summary attached to the appellant's 2007 tax return discloses a payment period in relation to Health Services between 24 December 2006 and 30 June 2007 with a gross salary of $8,655, the tax withheld being $2,126, so that the net salary is $6,525. 90 The appellant's shift regime at the mine did change during the time she was there, and with it her ability to do other work. 91 Nonetheless, the appellant's claims as to the extent of the work done by her is not borne out by the available information. 92 In the circumstances all I am able to do is to consider any loss on the basis of the average net weekly income, that being $242. 93 A medical certificate dated 6 September 2007 signed by Dr Phillips certified the appellant as being unfit to 6 September 2007 and fit for light duties only, with no driving of trucks, from 7 September 2007 to 21 September 2007. 94 It would seem reasonable to proceed on the basis the appellant would have been unfit for work as an enrolled nurse until the end of the latter period. 95 The total time lost is then four weeks, and the net loss of income $968. 96 Although the appellant did not in fact return to work for some considerable time after that date it is clear from her evidence that was due to her unhappiness with the hospital and its treatment of her, and was not an absence caused by her injuries.
Other loss 97 There is no issue raised in relation to the medical and pharmaceutical expenses or the cost of reports obtained. 98 The appellant seeks travelling expenses in relation to visits to doctors and the like. I allow the sum of $127.04. 99 In relation to the medical and pharmaceutical expenses and the cost of reports, I would allow hotel expenses as claimed, over and above the sums allowed by the assessor. (Page 16) Cost of future treatment 100 A claim is made for the net cost, after Medicare rebate, of attendance by the appellant on 12 occasions for counselling by a psychologist, but given the findings above I do not find that any need that the appellant might have for such treatment is related to the injuries sustained by her in the assault. Conclusion 101 In summary the appellant is entitled to compensation as follows: Injuries $14,000.00 Loss of income $ 968.00 Cost of reports $ 3,476.00 Miscellaneous pharmaceutical and other expenses $ 1,173.00 Medical expenses $ 244.00 Travelling expenses $ 127.04 $19,988.04 102 I allow compensation in the sum of $19,988.04.
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